Citation Nr: 0020956
Decision Date: 08/10/00 Archive Date: 08/18/00
DOCKET NO. 98-10 327 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma
THE ISSUE
Entitlement to service connection for a seizure disorder.
REPRESENTATION
Appellant represented by: Oklahoma Department of
Veterans Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. Stephen Eckerman, Associate Counsel
INTRODUCTION
The veteran had active duty from March 1991 to October 1996.
This appeal arises from a December 1996 rating decision by
the Department of Veterans Affairs (VA) Regional Office (RO)
in Muskogee, Oklahoma, which denied the veteran's claim
seeking entitlement to service connection for a seizure
disorder, stomach pain, throat pain, bilateral hand pain,
right ear pain, and alcohol problems, and granted service
connection for a panic and depressive disorder, and
hypertension. In February 1998, a notice of disagreement was
received as to all the denials of service connection, and in
May 1998 a statement of the case was issued. However, a
substantive appeal was received only with regard to the claim
for a seizure disorder, and the claims for stomach pain,
throat pain, bilateral hand pain, right ear pain, and alcohol
problems are therefore not before the Board at this time.
See 38 U.S.C.A. § 7105(a), (d) (West 1991); 38 C.F.R.
§§ 20.200, 20.202 (1999).
FINDING OF FACT
The claims files includes medical evidence indicating that
the veteran may have had a seizure disorder during her
service, and lay evidence of a seizure disorder within one
year of separation from service.
CONCLUSION OF LAW
The claim for a seizure disorder is well grounded.
38 U.S.C.A. § 5107(a) (West 1991).
REASONS AND BASES FOR FINDING AND CONCLUSION
The veteran's service medical records show that she received
periodic treatment at a mental health clinic beginning in
about mid-1994 for symptoms that included sleep walking,
rapid heart beat, breathlessness, muscle cramps, nervousness,
hot flashes and dizziness. It appears that examiners
determined that she had depression and a panic disorder.
Another report shows that on September 25, 1996, she was
treated after she leaned over and "passed out." She
reported that her limbs had shook for about three minutes,
and that she had felt very nervous and anxious and that she
could not get enough air. A history of a panic disorder and
hypertension were noted. All examinations were unremarkable.
The diagnosis was vagal syncope vs. possible nonfocal
seizure. In addition, the Board notes that service medical
records show that the veteran was on medication for her blood
pressure, and that reports, dated in April and August 1996,
note that her hypertension was poorly controlled.
Post service medical records include a report from the Sparks
Regional Medical Center (SRMC), dated in January 1998, which
shows that the veteran was admitted for an injury to her
tongue. She complained of high blood pressure and headaches
for the last several days. Her mother apparently reported
finding her shaking for a minute or two on the floor and
bleeding from the tongue. The provisional diagnosis was
"grand mal seizure-severe hypertension." A CT
(computerized tomography) scan of the head was normal. Other
private medical reports, apparently from Judy Trent, D.O,
dated between 1998 and 2000, show treatment for high blood
pressure. In May 2000, the veteran reported that she had not
taken her blood pressure medication for several months, and
that she had had a seizure. The impressions included
accelerated hypertension, uncontrolled, poor compliance
relating to this, and history of seizure disorder, with
apparent recurrent seizure two days ago. She was started on
Dilantin. A subsequent report, also dated in May 2000,
contains impressions of chronic headache, chest wall pain and
a seizure disorder.
The claims file contains two lay statements, apparently both
from the veteran's neighbors, who each assert that the
veteran had a seizure in February 1997.
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). In
addition, certain chronic diseases, including epilepsies, may
be presumed to have been incurred during service if they
become disabling to a compensable degree within one year of
separation from active duty 38 U.S.C.A. §§ 1101, 1112, 1113;
38 C.F.R. §§ 3.307, 3.309 (1999). If a condition noted
during service is not shown to be chronic, then generally a
continuity of symptoms after service is required for service
connection. 38 C.F.R. § 3.303(b). The chronicity provision
of 38 C.F.R. § 3.303(b) is applicable where evidence,
regardless of its date, shows that a veteran had a chronic
condition in service or during an applicable presumption
period and still has such condition. Such evidence must be
medical unless it relates to a condition as to which, under
the Court's case law, lay observation is competent. If the
chronicity provision is not applicable, a claim may still be
well grounded or reopened on the basis of 38 C.F.R.
§ 3.303(b) if the condition is observed during service or any
applicable presumption period, continuity of symptomatology
is demonstrated thereafter, and competent evidence relates
the present condition to that symptomatology. Savage v.
Gober, 10 Vet. App. 488 (1997).
To establish that a claim for service connection is well
grounded, a veteran must demonstrate a medical diagnosis of a
current disability; medical, or in certain circumstances, lay
evidence of inservice occurrence or aggravation of a disease
or injury; and medical evidence of a nexus between an
inservice disease or injury and the current disability.
Where the determinative issue involves medical causation,
competent medical evidence to the effect that the claim is
plausible is required. See Epps v. Gober, 126 F.3d. 1464
(1997).
The veteran asserts that she has had a seizure disorder since
her service. Under the circumstances, the Board finds that
the veteran's assertions, her service medical records which
contain a diagnosis of vagal syncope vs. possible nonfocal
seizure, and the aforementioned private medical records and
lay statements indicating that she may have a seizure
disorder during service or within a year of separation from
service, are sufficient to render the veteran's claim for a
seizure disorder well grounded within the meaning of 38
U.S.C.A. § 5107(a)(West 1991).
ORDER
The veteran's claim of entitlement to service connection for
a seizure disorder is well-grounded. To this extent, the
appeal is granted subject to the following remand provisions.
REMAND
The claims file contains evidence which may show that the
veteran was treated for a seizure disorder during service.
However, for some time prior to this episode, she had been
receiving treatment for conditions which may be related to
her symptoms. Specifically, she had been receiving ongoing
treatment for a panic disorder and hypertension (the Board
notes that service connection has been granted for both these
disorders). The next evidence of a seizure disorder is
found in the SRMC record, dated in January 1998. However, as
the veteran was separated from service in October 1996, this
is approximately one year and three months after service, and
this evidence is not dated within the presumptive period for
epilepsies. Furthermore, the SRMC diagnosis was provisional,
and does not appear to have been verified by that facility.
The next evidence of a seizure disorder is found in Dr.
Trent's records, dated in May 2000.
VA has a duty to assist the veteran in the development of
facts pertinent to her claim. 38 U.S.C.A. § 5107(a) (West
1991); 38 C.F.R. § 3.303(a); Talley v. Brown, 6 Vet. App. 72,
74 (1993). This duty includes conducting a thorough and
contemporaneous medical examination of the veteran. See
Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Furthermore,
when the medical evidence is inadequate, VA must supplement
the record by seeking an advisory opinion or ordering another
medical examination. Colvin v. Derwinski, 1 Vet. App. 171
(1991). In this case, given the complex history and nature
of the veteran's claimed seizure disorder, which may be
related to her service-connected panic disorder and
hypertension, the Board is convinced that a remand is
required to provide the veteran with a comprehensive
neurological examination in order to determine the nature and
etiology of the veteran's claimed seizure disorder.
Accordingly, this case is REMANDED for the following action:
1. The RO should ask the veteran to
provide the names and addresses and dates
of treatment for all medical care
providers who have provided treatment for
her claimed seizure disorder since
separation from service which are not
currently associated with the claims
file. After securing any necessary
releases, the RO should obtain these
records.
2. Thereafter, the RO should arrange for
the veteran to undergo a VA examination
by a board certified neurologist, if
available, to ascertain whether the
veteran presently has a seizure disorder.
If the veteran is not found to have a
seizure disorder, the examiner need only
state the same. If the veteran is found
to have a seizure disorder, the examiner,
after reviewing the record, should offer
an opinion as to whether it is at least
as likely as not that the veteran's
seizure disorder is related to the
veteran's service, or to her service-
connected hypertension and/or panic
disorder, or, in the alternative, whether
it is as least as likely as not that her
seizure disorder was symptomatic as of
October 1997. Any special diagnostic
studies deemed necessary should be
performed. It is imperative that a copy
of this remand, as well as the claims
folder, be provided to the examiner for
review in conjunction with the
examination. The rationale for all
opinions expressed should be fully
explained.
3. After the action requested in the
above paragraphs has been completed, the
RO should adjudicate the issue of service
connection for a seizure disorder on the
basis of all the evidence of record.
4. If the benefit sought on appeal is
not granted, the veteran, and her
representative, should be furnished a
supplemental statement of the case and be
afforded the applicable opportunity to
respond thereto.
Thereafter, the record should be returned to the Board for
further appellate review, if in order.
The purpose of this REMAND is to obtain additional
development, and the Board does not intimate any opinion as
to the merits of the case, either favorable or unfavorable,
at this time. The veteran is free to submit any additional
evidence she desires to have considered in connection with
his current appeal. No action is required of the veteran
until she is notified.
BRUCE KANNEE
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1999).